Scottish Court of Session Decisions

In the case of Horne v. Breadalbane Trustees, reported ante, XIII. p. 296 (which see), it was held, in terms of a disposition by Lord Glenorchy to Sinclair of Stirkoke, in 1715, of the lands and teinds of Sybster, Wedderklett, and Hauster, that the Marquis of Breadalbane, as representing the disponer, was bound to relieve Mr Horne, now standing in the right of the disponee, of all imposition in name of ministers' stipend laid upon these lands and teinds, beyond a certain specified amount. The present action was brought at the instance of the late Marquis's trustees against the late Sir John Sinclair of Ulbster to be relieved of this obligation, in virtue of a subsequent deed in 1719.

Prior to that date a great portion of the lands and possessions, including those above-mentioned, belonging to the Earldom of Caithness, had passed out of the hands of the Breadalbane family, who had recently before acquired them with all their liabilities. In that year Lord Glenorchy, afterwards second Earl of Breadalbane, executed a deed, bearing to be a disposition in favour of John Sinclair of Ulbster, ancestor of Sir John, for a price of £6300 sterling, of the whole lands, &c. of the Earldom of Caithness, including the lands and teinds of Sybster, Wedderklett, and Hauster; but under certain burdens and qualifications, viz. with the burden of the said John Sinclair, and his heirs and successors, freeing and relieving Lord Breadalbane, and his heirs and successors, of all the debts and deeds of the deceased Earl of Caithness, his author, and of “all actions, processes, and pursuits, that is, or may, or can be intented against us or any others, the heirs, successors, and representatives of our said deceased father, or these whom we are obliged to warrand;” as also with the burden of “all obligations, burden, trouble, and expense, which we, our heirs and successors, may be hereafter put to or laid to our charge, of and concerning the said lands and others above disponed, lying within the said shire of Caithness”—“excepting the proper debts contracted by us and our said umquhill father;”—“And sicklyke with the burden of all bargains and sales made by our said umq ¹¹ father or us, of any part or portion of the lands and others particularly and generally a. disponed, or tacks of any of the said teinds and obligements therein contained, before the said seventh day of January Jaivij and nineteen years, which the said John Sinclair, by his acceptation hereof, binds and obliges him, his heirs and successors whatsomever, to ratifie, approve, and implement in the haill heads, tenor, and contents thereof, in so far as we or our said umq ^l father are bound thereby, and never to quarrel or impugn the same upon any account whatsomever that will afford ground of eviction or recourse against us or our foresaids;”—Providing always that the granting of these presents, with the burdens, &c. or John Sinclair's acceptation thereof, should not infer any homologation or approbation of the same, but that it should be lawful for the said John Sinclair and his foresaids to quarrell, reduce, and impugne the same, upon any grounds of law, “providing the same do not infer any action of recourse against us or our foresaids, upon any warrandice granted by us to them.” The warrandice was from the facts and deeds of the disponer and his father; “excepting always furth and from this clause of warrandice, and this present right, all dispositions, or contracts, or charters of few, clauses of warrandice therein contained, minutes of sale, rights of wadsett proper or improper, and by virtue whereof the wadsetters are in possession, before the said 7th day of January, with all tacks of the saids lands, teinds, or others, of any part or portion thereof, made or granted by us or our said umq ¹¹ father, to whatsomever person or persons, before the said 7th day of January last, and all other obligations, trouble, or expense, with which the lands and others above disponed is to be really burdened and affected in manner above mentioned, and whereof the said John Sinclair is expressly burdened to relieve us.”

Libelling upon this deed, the Breadalbane trustees brought their action of relief against Sir John Sinclair, as successor of John Sinclair of Ulbster, concluding to have it found and declared that he was bound, in terms of its provisions, to free and relieve the pursuers, and the lands above-mentioned, of all payments of stipend beyond the amount stipulated in the deed of 1715, with the exception of those portions of the stipend payable under any augmentation granted 40 years prior to the action at the instance of Horne, and to free and relieve them of the whole conclusions of that action. ^*

_________________ Footnote _________________

* The summons contained certain farther conclusions not necessary to be at present noticed.

Sir George Sinclair (who was sisted as defender on the death of his father, the late Sir John Sinclair) and Sir John's trustees pleaded in defence, 1st, That their predecessor, John Sinclair of Ulbster, was not bound by the disposition of 1719 to relieve the Earls of Breadalbane of any personal obligations, such as that in question, or other “proper debts,” granted or contracted by them in reference to the Earldom of Caithness, which debts were by the deed expressly excepted from the warrandice; and that he undertook no obligation, except in reference to the lands truly conveyed to him by the deed, which was confessedly not the case with the lands of Sybster, &c. 2d, That even if any such personal obligation had been undertaken by the deed of 1719, the right to enforce it was cut off by the negative prescription.

The Breadalbane trustees, in answer, contended, 1st, That the deed in question, whereby the whole Caithness estates, with which the Breadalbane family had ever been in any way connected, were disponed, implied by its tenor, and actually effected a transference of the entire rights and obligations of the disponer with reference to the lands disponed, and that John Sinclair undertook these obligations with reference to the whole of the lands which the deed purports to dispone, as well as with reference to those disponed cum effectu; 2d, That as it had been found that the obligation of warrandice in the deed of 1715 had not been extinguished by the negative prescription, so neither could Lord Breadalbane's claim of relief from that obligation be lost by the negative prescription; and this a fortiori, he not having yet been affected by any distress. ¹

_________________ Footnote _________________

¹ Ante, XIII. 296.

The Lord Ordinary pronounced the following interlocutor, with the note subjoined: ^*—“Finds, that the defender Sir George Sinclair,

_________________ Footnote _________________

* “Though the Lord Ordinary has come to the conclusion expressed in the interlocutor, it is not without considerable difficulty and hesitation. Very able arguments were maintained by the defender's counsel, on two points: lst, Whether, according to the true construction of the disposition, 1719, any obligation was contracted to relieve Lord Breadalbane of the warrandice against future augmentations of stipend, which was contracted by Lord Glenorchy, by the deed in favour of Sinclair of Stircock in 1715; and, 2d, Whether, supposing such an obligation of relief to have been contracted by the defender's author, it has not been lost by negative prescription.

“With regard to the last of these points, the Lord Ordinary must confess that he is unable to make the distinction between this case and that already decided. The obligation to warrant the lands and teinds conveyed to Stircock against future augmentations, has been found not to be cut off by prescription, notwithstanding that no claim was made on it for more than forty years, after a partial distress took place by the imposition of augmented stipend on those lands, without any claim of relief having been made. But if such partial distress, and the running of forty years after it, without document taken, did not extinguish the whole obligation of warrandice, it is not easy to see how Lord Breadalbane's claim of relief of that warrandice could be lost by negative prescription before there was any distress whatever affecting him. Lord Breadalbane was no party to the localities, and as long as no claim was made against him by Stircock, he was not called upon to take any document on the obligation of relief assumed to be competent against the family of Ulbster. Although, therefore, this question was ably treated as distinct from the point decided by the Court, the Lord Ordinary sees little difficulty in it.

“On the first question above-mentioned, he has much more doubt. Though the lands of Sybster, &c., were in point of form comprehended in the disposition 1719, they were not in reality given, nor meant to be given, to Sinclair of Ulbster, because they had been previously conveyed to Stircock. The pursuers found strongly on this circumstance, as showing that these lands were included solely for the purpose of transferring the obligations connected with them to Sinclair of Ulbster. The Lord Ordinary does not think that there is much justice in this remark, or that it at all tends to resolve the present question. Lord Breadalbane's predecessors had acquired right to the whole earldom of Caithness, subject to the debts and obligations of the Earl of Caithness. The lands of Sybster, &c., were then subject to a wadset right. Lord Glenorchy, by the deed 1715, renounced the right of reversion, and disponed the lands and teinds subject to the conditions expressed in it. Then Lord Breadalbane proposed to sell the lands of the earldom generally to Sinclair of Ulbster, with the exception of these lands of Sybster, &c., and any other lands which might have been previously conveyed to others by himself or his predecessor. And the form and character of the deed 1719 are explained by this, that it seems to have been uncertain what was the precise state of the rights connected with the earldom; and, therefore, it was determined to make a broad conveyance of the whole, subject to an equally broad exception from the warrandice and provisions by which Lord Breadalbane and his successors might be relieved, both of the debts of the Earl of Caithness, and of the rights of any third parties, in consequence of conveyances of parts of the lands. The defender maintains, that all the general clauses in the deed either had reference to claims which might be made on account of the Earls of Caithness, or could import no more than that the rights granted or constituted should not be challenged, on any ground, to infer recourse on the Breadalbane family. So at least the Lord Ordinary understood the argument.

“If the question depended exclusively on the clause which is on the 6th page of the summons, and on page 19th of the printed deed, and if it were held to turn on the word ‘ obligements’ in that clause, the Lord Ordinary should think that that word probably has reference exclusively to the lacks of teinds immediately before-mentioned. But supposing this to be true, it is still difficult to give the defender's construction even to that clause taken alone; for the conveyance is not merely ‘under the burden of all bargains and sales made by our said umquhile father or us of any part or portion of the lands and others,’ &c., with an obligation not to impugn the same on any ground to infer recourse on Breadalbane; but the clause further bears, ‘ which the said John Sinclair binds himself and his successors to ratify, approve, and implement, in the haill heads, tenor, and contents thereof, in so far as we or our umquhile father are bound thereby.’ It is difficult to see how this can be explained otherwise than that the disponee became bound to implement the obligations of warrandice as one of the heads of the sale to Stircock, to the effect of relieving the disponer thereof; and the Lord Ordinary cannot think that an obligation of this kind can be held to be included in the exception at the top of the same page of the deed, of the proper debts contracted by the granter or his father. It is surely an obligation ‘ of and concerning the said lands’

“But there is a clause in the procuratory of resignation which it is still more difficult to explain according to the defender's plea. It excepts from the warrandice and this present right, ‘all dispositions and contracts or charters of feu, clauses of warrandice therein contained, minutes of sale, rights of wadsett,’ &c., ‘made or granted by us, or our said umquhile father,’ &c., ‘and all other obligations, trouble, or expense, with which the lands and others above disponed is to be really burdened and affected in manner above-mentioned, and whereof the said John Sinclair is expressly burdened to relieve us,’ The Lord Ordinary is of opinion that the defender is only so burdened in relief to Lord Breadalbane. But he cannot think that such an express obligation to relieve him of the clauses of warrandice, in any dispositions or contracts granted by him or his father, does not comprehend the obligation of warrandice of the teinds of the lands of Sybster, expressed in the disposition by Lord Glenorchy to Sinclair of Stircock.

“As the defender's counsel seemed to intimate in debating the case with Mr Horne, that if the defence against his title were sustained, it might possibly affect the claim for relief of arrears of stipend, the Lord Ordinary has left such question open, though he may not exactly see how such a specialty is to be made out.”

Baronet, now sisted in the place of Sir John Sinclair, deceased, as representing John Sinclair of Ulbster, the original contractor and disponee in the contract and disposition between John Earl of Breadalbane and the said John Sinclair, of date the 28th March, 1719, set forth in the libel, is generally liable in relief to the pursuers of the obligation of warrandice against future augmentations of ministers' stipends, expressed in the deed of contract, dated 28th March and 20th April, 1715, between John Lord Glenorchy and Francis Sinclair of Stircock: Repels the plea of prescription, so far as it is stated against such general liability; but, before answer as to the amount and extent of the relief claimed in this action, and the claim for relief of the expenses of the process with William Horne, Esq. appoints the cause to be enrolled, and in the meantime reserves the question of expenses.”

Sir George Sinclair reclaimed, when the Court being equally divided, their Lordships ordered cases, which they directed to be laid before the other Judges for their opinion, “Whether the interlocutor of the Lord Ordinary should be adhered to.”

The consulted Judges were unanimously of opinion, “that the interlocutor of Lord Moncreiff should be adhered to.”

The cause was this day put out for advising.